Primary Election Suit Moves to Federal Court

Three unsuccessful Republican candidates for state Assembly who had hoped for a speedy challenge of the March open primary are making an unexpected detour into federal court.

After the U.S. Supreme Court ruled last month that California's open primary was unconstitutional, the three candidates--Jim Righeimer and Bruce Matthias of Orange County and Robert S. DeMallie of San Bernardino County--filed lawsuits in state court against California Secretary of State Bill Jones and the winning Republican candidates.

While Righeimer, Matthias and DeMallie received more Republican votes March 7, other candidates collected more votes overall in each race. Last week, Righeimer, Matthias and DeMallie asked a Sacramento Superior Court judge to nullify the election results by ordering a recount of only the Republican votes.

The judge granted an emergency hearing, which had been scheduled for Tuesday.

But lawyers for Jones and the winning candidates--Tom Harman of Huntington Beach, Lynn Daucher of Brea and Dennis R. Yates of San Bernardino--intervened. They requested the matter be reassigned to federal court, where the cases were parceled to three judges.

"We believe this was done just for delay purposes," said Tim Bittle, a Sacramento attorney for Righeimer. "You would think that if anyone would have confidence in the state court system, it would be the secretary of state."

Matthias added: "We're taking this as a backhanded compliment. Our opponents are not trying to challenge us on the merits of our case. Instead, they are just trying to delay and run out the clock."

The two sides face an Aug. 31 deadline, which is the day the Nov. 7 general election ballots must be ready for the printers. If the case drags into September, it would be difficult, if not impossible, to erase the names of Harman, Daucher and Yates from the ballot.

A spokesman for Jones said the case was reassigned because it deals with federal issues. The original lawsuit started in federal court. The U.S. Supreme Court cited the 1st Amendment in its opinion striking down California's open primary law.

"My highest priority is to resolve this issue as expeditiously as possible," Jones wrote in a memo Monday. He added that the Supreme Court "did not say its ruling applied retroactively. In fact, the political parties, when arguing the case before the court, said explicitly that they were not seeking to apply the decision retroactively."